Solomon v. State

557 S.E.2d 666, 347 S.C. 635, 2001 S.C. LEXIS 201

• Court: Supreme Court of South Carolina
• Decided: December 17, 2001
• Docket: No. 25393
• Status: Published

Opinions

MOORE, Justice:

Respondent was convicted of armed robbery for attacking sixty-nine-year-old Clyde Waymer with a hammer and stealing his wallet. After his direct appeal was dismissed, respondent filed this application for post-conviction relief (PCR) which was granted. The PCR judge found counsel was ineffective for failing to object to the trial judge’s omission of a not guilty verdict in submitting the case to the jury.¹ We find counsel was not ineffective and reverse.

DISCUSSION

The trial judge submitted to the jury armed robbery and, as a lesser included offense, strong arm robbery. “Not guilty” was not submitted as an option. The PCR judge found counsel was ineffective for failing to call this omission to the trial judge’s attention. Although he made no express finding of prejudice, the PCR judge granted relief.

In a PCR proceeding, the petitioner must meet the standard established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires he show (1) counsel’s representation fell below an objective standard of reasonableness and (2) but for counsel’s errors, there is a reasonable probability the result at trial would have been different. Edmond v. State, 341 S.C. 340, 534 S.E.2d 682 (2000); Johnson v. State, 325 S.C. 182, 480 S.E.2d 733 (1997).

Under the particular circumstances of this case, we find counsel’s performance was not deficient. Where counsel articulates a valid reason for employing a certain strategy, such conduct will not be deemed ineffective assistance of counsel. Caprood v. State, 338 S.C. 103, 525 S.E.2d 514 (2000); Stokes v. State, 308 S.C. 546, 419 S.E.2d 778 (1992).

Here, the record indicates that, with respondent’s consent, counsel intentionally waived the option to have the jury consider a “not guilty” verdict on the robbery charges.² In opening, counsel argued:

This is a little bit of an unusual case. It is unusual in that what I am about to tell you, you 'will probably never hear from a defense attorney, and that is that [respondent] is guilty. He committed a crime on March 6, 1996. He hit Mr. Waymer with the hammer and took his billfold.

Now, I could get up here and argue that it wasn’t him, it was somebody else, or something else happened, but I am [respondent’s] attorney, and he doesn’t contest that that happened. He doesn’t want me to argue that it wasn’t him that day.

Just about everything you hear from the witness stand will be the truth. We don’t contest — [respondent] does not want me to contest it. [Respondent], after this happened, turned himself in. He went down to the police station and said, “I committed a crime. I want to confess. And I want to be punished.”

So, ladies and gentlemen, as we go through the testimony, all we ask is that you listen to the facts. At the end the judge will tell you what the law is. And you will have to decide what crime [respondent] is guilty of. It is not “if’ he is guilty of a crime, because he is guilty. The question is: What crime or crimes?

In closing, counsel stated:

And the facts are that [respondent] robbed Mr. Waymer. He hit Mr. Waymer with a hammer and he took his wallet. Those are all the elements of robbery, common law robbery. ... [Respondent] committed a crime. He committed a felony-common law robbery. He is going to be convicted of that and he is going to be punished.

At the PCR hearing, counsel testified he was unsuccessful in his pre-trial attempts to negotiate a plea to the lesser offense of strong arm robbery. He concluded the only chance of having the charge reduced was to argue the lesser offense to a jury. • Because of respondent’s prior record and the fact that armed robbery was a no-parole offense, counsel believed respondent had nothing to lose by going to trial despite the strength of the State’s case. Counsel made every effort to impress the jury with respondent’s willingness to take responsibility for what he had done. The submission of a “not guilty” verdict would have been inconsistent with this trial tactic.

We find, under these circumstances, counsel’s strategy was a reasonable one. Because we find counsel was not ineffective, we need not address the prejudice prong under Strickland3 The grant of relief is

REVERSED.

WALLER and BURNETT, JJ., concur. PLEICONES, J., concurring in a separate opinion. TOAL, C.J., dissenting in a separate opinion.

1 . Respondent was also convicted of assault and battery of a high and aggravated nature. Relief was not granted on this charge.

2 . The record does not support the PCR judge’s finding that trial counsel "admitted he made a mistake" in failing to object.

3 . The dissent's analysis on the ineffectiveness prong is simply that "counsel can never have a strategic justification for failing to ensure a not guilty verdict is submitted to the jury.” See Roscoe v. State, 345 S.C. 16, 546 S.E.2d 417 (2001) (issues on PCR must be framed as one of ineffective assistance of counsel). We think a case-by-case analysis is the better approach in determining the reasonableness of counsel’s strategy since trial strategy is, by necessity, formulated in response to the particular circumstances of each case.